The Magistrate of the National Court Manuel García Castellón has rejected the appeal for reform filed by one of the defendants in the Democratic Tsunami case, Oleguer Serra, who had requested to remove him from the investigation. The judge considers that the recusal does not meet the formal or fundamental requirements to be admitted to the procedure.
The judge does not see a violation of rights or defenselessness
In an interlocutory hearing, the head of the Central Court of Inquiry number 6 argues that the essential rules of the procedure have not been breached nor has the defendant become defenseless, as he alleged. Likewise, it indicates that the recusal “lacks the most basic formal requirements required for its processing”, according to article 223.2 of the Organic Law of the Judiciary (LOPJ), since it is not signed by the recusant nor is a power of attorney attached special, nor has ratification been carried out, so it would not be appropriate in this way either, as has happened in the Criminal Chamber with the recusal raised by the defendant Josep Lluís Alay, ‘right-hand man’ of the former Catalan president Carles Puigdemont and accused in the case.
It should be remembered that Serra asked to disqualify the magistrate for statements he would have made in the Forum of the Ourense Region. “I can only say two things as a citizen: that slavery is not prohibited in the Constitution either and yet it is not possible. And it is not expressly prohibited. And two: Well, these gentlemen have said that as soon as they can they will do it again, so will this amnesty be the first of many others later?”, he said.
The judge says the recusal is “identical” to a previous one
In the resolution, the judge points out that the recusal incident raised by Serra is “identical (down to the typography)” to the one that had been formulated days before by the procedural representation of Oriol Soler Castanys, also charged. He acknowledges, of course, that the providence that initially decided on Oriol Serra’s letter was “poor in terms of its motivation” but warns that the Criminal Chamber has recently shelved the recusal presented by Alay “precisely for formal reasons, and that it was based on the same facts as the one raised by Mr. Serra”.
With regard to the possibility that defenselessness had occurred in Serra, the judge points out that “it has not been proven in the slightest by those who invoke it” and remembers that it is not enough to say that a procedural act causes defenselessness to give it by existing “It is necessary to justify the cause of this. In this case, despite being a central element of the cause of nullity pointed out, it is only mentioned twice, and its invocation is based on the most absolute argumentative void”, he explains.
The magistrate insists that in this procedure Serra “is not defenseless” and adds that “the facts show that he has been able to challenge the resolution regarding which he understands that it is not in accordance with the law, alleging everything he has thought appropriate, but , moreover, he has been given a reasoned answer.” On the other hand, it also does not appreciate a violation of the essential rules of the procedure because the provision contested by Serra did not admit the recusal ‘ad limine’, that is to say, of plan. “This power of non-admission is provided for in the LOPJ, and it is appreciated in this case”, he remarks.
